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The Ontario Court of Appeal has dismissed the crown's appeal in Fairmont Hotels Inc v AG (Canada). On appeal, the crown argued that the lower court had misapplied the test for rectification because the parties had not determined the specific manner in which their intention to avoid tax would be carried out. The decision is an important affirmation of the result and reasoning in Juliar v AG (Canada).

Obtaining judgment against an adversary is the first and often most heavily contemplated step for litigators and litigants alike. However, equally important is a litigant's ability to enforce a judgment, particularly against a non-resident party. As Canada is a signatory to the Hague Convention, service of documents on a Canadian corporation or individual must comply with the convention's prescribed steps.

In Kruger Incorporated v The Queen the Tax Court held that the taxpayer could not value its foreign exchange options contracts on a mark-to-market basis, with the result that certain losses were not deductible by the taxpayer in a year. Kruger is another recent judgment of the Tax Court in the developing law on the Canadian tax treatment of financial derivative products.

The Supreme Court recently ruled that Section 225(4) of the Quebec Securities Act – requiring plaintiffs to show that their claims are brought in good faith and with a reasonable chance of success – is not an obstacle to obtaining court authorisation for an action against reporting issuers, directors, officers or experts for damages resulting from the acquisition or disposition of securities in the secondary market.

The Ontario Divisional Court recently rejected the notion that Ontario courts should treat plaintiffs and defendants differently when determining costs in cases that raise novel issues or matters of public interest. In doing so, the court disabused many of the assumption that in class proceedings, only unsuccessful plaintiffs may be relieved of their obligation to pay costs in appropriate circumstances.

The Supreme Court of Canada recently released two decisions concerning the admissibility of expert evidence. The decisions concerned the appropriate considerations in determining whether an expert witness is sufficiently independent and impartial, and whether the standards for admissibility of expert evidence should take into account the proposed expert's (alleged) lack of independence or bias.

The Ontario Securities Commission recently prohibited Conrad Black from any activity that would enable him to direct or influence the management of a business required to comply with Ontario's securities laws. The decision demonstrates that the commission will adopt a broad approach to its interpretation of the Securities Act in order to protect investors and Ontario's capital markets.

The minister of sustainable development, environment and parks recently introduced Bill 42, which, if passed into law, will create government regulatory powers that will deepen its control over greenhouse gas emissions through market mechanisms. Essentially, the bill will allow for the creation of a provincial cap-and-trade system, the details of which will be established by government regulation following the enactment of the law.

Ontario's deputy premier and minister of energy and infrastructure recently introduced Bill 150 for its first reading in the legislature. If passed, the bill would create a new standalone Green Energy Act 2009 and significantly amend or repeal 17 other statutes in order to set Ontario on course to a greener economy and a conservation culture.

The Quebec government plans to adopt a new regulation in order to collect information on the impact of water withdrawals and allow for better management of conflicting uses of water resources. Industries, businesses, municipalities and institutions will be required to communicate various data to the government on the water that they withdraw from the natural environment.

A new list of Canadian governmental incentives targeted specifically at businesses is now making it easier to be green. This update provides an overview of the environmental incentive programmes available to businesses located in Ontario, together with a description of the respective eligibility requirements.

Under British Columbia’s Environmental Management Act, the Ministry of Environment has the authority to issue contaminated sites approvals, notably certificates of compliance and approvals in principle of remediation plans. The newly created and independent Society of Contaminated Sites Approved Professionals of British Columbia now processes the vast majority of applications.

Canadian companies face an uncomfortable new reality with respect to cross-border pollution: even if they conduct no activities in the United States, the long arm of the US Environmental Protection Agency is applicable if their Canadian operations result in pollution south of the border.

Case Law Update


Product liability is a specialized area of tort law that is evolving in response to new developments in business and consumer transactions and the recent introduction of class actions throughout Canada. This update discusses some of the highlights of recent Canadian product liability law with a particular focus on Ontario.